United States District Court, D. Colorado
AMBER STROUGH, a citizen of Colorado, individually, as mother of Macayla Razes, as next friend of R.S., and as Personal Representative of Macayla Razes, deceased, R.S., a citizen of Nebraska and a minor, by and through his grandmother and next friend, Amber Strough, and MADISON STROUGH, a citizen of Colorado, Plaintiffs,
GENERAL MOTORS LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS INC., a Delaware corporation, Defendants.
ORDER ON PLAINTIFF'S MOTION IN SUPPORT OF
REVISING PROTECTIVE ORDER (DKT. #57)
Reid Neureiter United States Magistrate Judge
matter comes before the Court on Plaintiff's Motion in
Support of Revising the Protective Order. (Dkt. #57.)
a product liability lawsuit brought against an automobile
manufacturer (General Motors LLC - “GM”) and the
manufacturer of a seatbelt system (TRW Vehicle Safety Systems
Inc. - “TRW”), arising from a single car
roll-over accident where Macayla Razes was ejected from a
2004 Chevy Impala and died. Plaintiff appears to be searching
for documents and other evidence to support multiple,
alternative, theories of liability.
Plaintiff claims that the 2004 Impala was defectively
designed because it was not equipped with Electronic
Stability Control (“ESC”), a feature which
improves a vehicle's stability by detecting and reducing
loss of traction by automatically applying the brakes to help
“steer” a vehicle when ESC detects a loss of
steering control. GM's ESC system was first introduced in
select models in 1996-97. The National Highway Traffic Safety
Administration required all new passenger vehicles sold in
the U.S. to be equipped with ESC as of the 2012 model year.
Plaintiff's theory of defective design is that this
proven safety-enhancing technology was available by the 2004
model year, and the failure to install it made the vehicle
unreasonably dangerous and caused the accident.
Plaintiff claims that the Impala's seatbelt system,
manufactured and designed by TRW, failed or unlatched during
the rollover, allowing her to be ejected. Finally, Plaintiff
alleges that the Impala lacked overall rollover
crashworthiness because it was not equipped with side-window
or rear-window glass that was sufficient to withstand
foreseeable crash forces sustained during a rollover and
would have prevented Ms. Razes from being ejected.
Court entered a protective order in this case on April 29,
2019 (“Protective Order”). (Dkt. #52.) The
Protective Order followed the suggestion of Defendants in
that it did not contain a so-called “sharing”
provision which would allow Plaintiff's counsel to share
the information obtained in discovery with “similarly
situated litigants”-meaning lawyers in other lawsuits
around the country involving similar issues against these
Plaintiff felt she had not had an adequate opportunity to
brief and argue for the inclusion of a sharing provision
prior to the Court's entry of the Protective Order.
Therefore, the Court allowed briefing on the subject.
See May 15, 2019 Courtroom Minutes (Dkt. #56). On
May 22, 2019, Plaintiff filed her brief in the form of a
Motion/Brief in Support of Revising the Protective Order.
(Dkt. #57.) Defendants filed a joint Response on May 29,
2019. (Dkt. #61.) The Court has reviewed the briefs and
relevant cited authorities. Plaintiff's motion to modify
or revise the Protective Order to include a
“sharing” provision is DENIED.
begins her brief by asserting that the “real
reason” GM requests a protective order without a
sharing provision is “to prevent other injured
customers from obtaining access to important safety documents
and to keep secret evidence of its negligence and
misconduct.” (Dkt. #57 at 1.) This is unnecessary,
unsupported hyperbole and including such a statement in the
introduction to a legal brief is counterproductive.
also argues that GM is not legally entitled to what Plaintiff
calls a “blanket secrecy order” and that the
fruits of pretrial discovery are, absent a court order to the
contrary, “presumptively public.” Plaintiff cites
Nixon v. Warner, 435 U.S. 589 (1978), for the
proposition that “[a]ccess to case records and files
should be denied only when such access has become a vehicle
for an improper purpose.” (Dkt. #57 at 2.) Plaintiff
also cites a case out of the Northern District of Georgia,
Parsons v. General Motors Corp., 85 F.R.D. 724
(N.D.Ga. 1980), for the proposition that “[c]ourts have
long rejected blanket secrecy orders based on GM's claim
that it needs to be protected from competitors.” And
indeed, the Parsons case begins its own analysis by
stating that the “general rule is that discovery and
trial in the federal court are on open records available to
the public.” 85 F.R.D. at 726.
Parsons case is outdated and Plaintiff is mistaken.
There is a strong presumption in favor of public access to
documents and materials filed in court and used in public
court proceedings. However, materials produced to an
adverse party via the discovery process are treated
differently from materials submitted to a court for
adjudicative purposes or introduced into evidence during
trial. As the Supreme Court explained in Seattle Times
Co. v. Rheinhardt, 467 U.S. 20 (1984), judicial
limitations on a party's ability to disseminate
information discovered in advance of trial implicates First
Amendment rights of the restricted party to a far lesser
extent than would restraints on dissemination of information
in other contexts. The Rules authorizing pre-trial discovery
are a matter of legislative grace. A litigant has no First
Amendment right of access to information made available only
through discovery for purposes of trying his suit. And
restraints placed on discovered information are not a
restriction on a traditionally public source of information.
Seattle Times, 467 U.S. at 32-34.
Court's objective is to get this case ready for trial
promptly. Delays in discovery while the parties fight about
whether documents can or cannot be shared with other lawyers
who may seek to bring other cases in the future do not
further the objective of getting this case ready for trial.
It may actually cause delay in the production of documents as
Defendants act more deliberately in deciding whether to
produce or object to discovery, concerned that any material
produced in discovery will be shared widely among the
Plaintiffs' Bar across the country for no verifiable
Judge Boland once said, citing Seattle Times,
“Civil discovery is a device to allow parties to obtain
information for the purpose of preparing and trying a
lawsuit. Consequently, and contrary to plaintiff's
argument, a party has no right to make unrestricted
disclosure of the information obtained through